Citation Nr: 9932156
Decision Date: 11/15/99 Archive Date: 11/29/99
DOCKET NO. 97-08 842 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for degenerative disc
disease of the cervical spine.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Eckart, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1963 to September
1966.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision of December 1996 from the Atlanta,
Georgia Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied the veteran's claim seeking
entitlement to service connection for degenerative disc
disease of the cervical spine.
It is noted that the appellant appeared at a hearing before
the undersigned Member of the Board on September 13, 1999, at
which time he testified with respect to the claim now at
issue before the Board. A transcript of that hearing has
been associated with the record on appeal.
FINDINGS OF FACT
1. No medical evidence has been submitted to show that the
veteran is suffering from any disability of the cervical
spine due to service.
2. The appellant has not submitted evidence sufficient to
justify a belief by a fair and impartial individual that the
claim for service connection for degenerative disc disease of
the cervical spine is plausible.
CONCLUSION OF LAW
The claim for service connection for degenerative disc
disease of the cervical spine is not well grounded.
38 U.S.C.A. § 5107 (a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
A review of the service medical records reflects that the
veteran was seen in September 1963 for a scalp wound,
sustained in an automobile accident, said to have happened
prior to enlistment; but there was no mention of any neck
problems. The veteran's August 1966 separation examination
is negative for symptomatology referable to a cervical spine
disability.
VA examination in February 1987 revealed no evidence of
complaints or symptoms related to a cervical spine disorder.
The earliest evidence of cervical spine pathology was
demonstrated in private treatment records from February and
March of 1996. A February 1996 ultrasound and Magnetic
Resonance Imaging (MRI) diagnosed a small C3-C4 disc
protrusion with mild anterior dural indentation. At the time
of a March 1996 consultation for cervical radiculopathy and
cervical spondylosis, a history of the veteran having had
severe back and neck pain that began many years ago when he
fell on a Navy ship and hurt his neck and shoulders was
provided. It was said to have been aggravated over the past
five years. Another March 1996 hospital discharge summary
diagnosed chronic cervical spine disease with spondylosis at
C5-6 and small disc at C6-7 on the left with neural foraminal
narrowing. This discharge summary noted a history of heavy
alcohol consumption, and noted that this contributed to his
present cervical spine illness.
Private clinical records dated in 1998 also addressed the
veteran's cervical spine problems. He was examined for
complaints of pain consistent with a C7 radiculopathy. A
history of a fall in the Navy, where he fell and struck the
back of his neck was given.
In written correspondence dated in May 1998, Robert M.
Townsend, M.D., noted that the veteran was disabled due to
his degenerative disc disease, but did not provide any
opinion regarding the cause of this disease.
On the occasion of the aforementioned hearing on appeal in
September 1999, the veteran testified that he injured his
cervical spine inservice in 1963, when he slipped and fell
aboard ship and struck his neck against something. He stated
that he was treated aboard the ship. The veteran further
noted that after this happened, his neck bothered him, but
admitted that he didn't seek medical treatment for his neck
until the 1990's.
Analysis
The threshold question to be answered at the outset of the
analysis of any issue is whether the appellant's claim is
well-grounded; that is, whether it is plausible, meritorious
on its own, or otherwise capable of substantiation. Murphy
v. Derwinski, 1 Vet. App. 78 (1990). If a claim is not well
grounded, then the appeal fails and there is no further duty
to assist in developing facts pertinent to the claim since
such development would be futile. 38 U.S.C.A. § 5107(a)
(West 1991).
A veteran has, by statute, the duty to submit evidence that a
claim is well grounded. The evidence must "justify a belief
by a fair and impartial individual" that the claim is
plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such
evidence is not submitted, the claim is not well grounded,
and the initial burden placed on the veteran is not met. See
Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary
assertions by the veteran must be accepted as true for the
purposes of determining whether a claim is well-grounded,
except where the evidentiary assertion is inherently
incredible. See King v. Brown, 5 Vet. App. 19 (1993).
In order for a claim to be well grounded, there must first be
competent medical evidence of a current disability; second,
there must be an incurrence or aggravation of a disease or
injury in service shown in either competent lay or medical
evidence; third, there must be competent medical evidence
showing a nexus between the current disability and the in-
service incurrence or aggravation of a disease or injury.
Caluza v. Brown 7 Vet. App. 498 (1995).
For service connection to be granted, it is required that the
facts, as shown by the evidence, establish that a particular
injury or disease resulting in chronic disability was
incurred in service, or, if pre-existing service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 1991 & Supp
1999); 38 C.F.R. § 3.303 (1999). There are some
disabilities, including disorders such arthritis, where
service connection may be presumed if the disorder is
manifested to a degree of 10 percent within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137 (West 1991 & Supp 1999); 38 C.F.R. §§ 3.307, 3.309
(1999). In addition, service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d) (1999).
Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether the claim is well-
grounded. King v. Brown, 5 Vet App. 19, 21 (1993). However,
lay assertions of medical diagnosis or causation do not
constitute competent evidence sufficient to render a claim
well-grounded. Grottveit v. Brown, 5 Vet App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
Upon review of the evidence, the Board finds that the claim
for service connection for degenerative disc disease of the
cervical spine is not well grounded. The medical evidence
does not show a cervical spine disorder, first shown to be
manifest in 1996, nearly 30 years after discharge, to be
related to service.
While there are medical opinions linking the veteran's
claimed cervical spine disability to service, these opinions
are based entirely on the medical history elicited from the
veteran. A transcription of a lay history is not transformed
into competent evidence merely because the transcriber
happens to be a medical professional. LaShore v. Brown, 8
Vet App 406 (1995).
In sum, there is no evidence showing incurrence or
aggravation of a disease or injury in service nor is there
competent medical evidence showing a nexus between the
current cervical spine disability and service. Thus, the
second and third prongs of Caluza are not met regarding this
claim for service connection for degenerative disc disease of
the cervical spine.
As the veteran has not submitted a well grounded claim in
this matter, there is no duty to assist. In Epps v. Gober,
126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v.
West, 118 S. Ct. 2348 (1998), the United States Court of
Appeals for the Federal Circuit (Federal Circuit) held that,
under 38 U.S.C. § 5107(a), the Department of Veterans Affairs
(VA) has a duty to assist only those claimants who have
established well grounded (i.e., plausible) claims. More
recently, the United States Court of Appeals for Veterans
Claims (Court) issued a decision holding that VA cannot
assist a claimant in developing a claim, which is not well
grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999),
req. for en banc consideration by a judge denied, No. 96-1517
(U.S. Vet. App. July 28, 1999) (per curiam).
Where a claim is not well grounded, VA does not have a
statutory duty to assist a claimant in developing facts
pertinent to the claim, but VA may be obligated under 38
U.S.C.A. § 5103(a) (West 1991) to advise a claimant of
evidence needed to complete his application. This obligation
depends on the particular facts of the case and the extent to
which the Secretary has advised the claimant of the evidence
necessary to be submitted with a VA benefits claim.
Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike
the situation in Robinette, the veteran has not put the VA on
notice of the existence of any specific, particular piece of
evidence that, if submitted, could make his claim well
grounded. See also Epps v. Brown, 9 Vet.
App. 341 (1996). Accordingly, the Board concludes that VA
did not fail to meet its
obligations under 38 U.S.C.A. § 5103(a) (West 1991).
ORDER
Service connection for degenerative disc disease of the
cervical spine is denied on the basis that the claim is not
well grounded.
A. BRYANT
Member, Board of Veterans' Appeals